Court of Justice of the European Communities (including Court of First Instance Decisions)

MEMBER STATES - OBLIGATIONS - FAILURE TO FULFIL - NO SYSTEM OF INSPECTION SET UP AS REQUIRED BY THE COMMUNITY RULES - JUSTIFICATION RELATING TO PRACTICAL DIFFICULTIES ENCOUNTERED - JUSTIFICATION NOT ACCEPTABLE IN VIEW OF THE PERIOD ELAPSED SINCE THE COMMUNITY PROVISIONS WERE BROUGHT INTO FORCE
( EEC TREATY , ART . 169 )

IN CASE 322/82
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , GIANLUIGI CAMPOGRANDE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
APPLICANT ,
V
ITALIAN REPUBLIC , REPRESENTED BY ARNALDO SQUILLANTE , HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS , TREATIES AND LEGISLATIVE MATTERS AT THE MINISTRY OF FOREIGN AFFAIRS , ASSISTED BY YVO MARIA BRAGUGLIA , AVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,
DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC , BY NOT EFFECTING QUALITY CONTROLS OF FRUIT AND VEGETABLES MARKETED WITHIN ITALIAN TERRITORY , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 8 ( 1 ) OF REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES , AND BY NOT PROVIDING MONTHLY STATEMENTS RELATING TO THE INSPECTIONS CARRIED OUT DURING THE PREVIOUS MONTH , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 5 ( 1 ) OF REGULATION ( EEC ) NO 2638/69 OF THE COMMISSION OF 24 DECEMBER 1969 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY , AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 2150/80 OF 18 JULY 1980 ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 17 DECEMBER 1982 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION , PURSUANT TO ARTICLE 169 OF THE EEC TREATY , FOR A DECLARATION THAT THE ITALIAN REPUBLIC , BY NOT EFFECTING QUALITY CONTROLS OF FRUIT AND VEGETABLES MARKETED WITHIN ITALIAN TERRITORY AS REQUIRED BY ARTICLE 8 ( 1 ) OF REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 437 ), AND BY NOT PROVIDING MONTHLY STATEMENTS RELATING TO THE INSPECTIONS CARRIED OUT DURING THE PREVIOUS MONTH , AS REQUIRED BY ARTICLE 5 ( 1 ) OF REGULATION ( EEC ) NO 2638/69 OF THE COMMISSION OF 24 DECEMBER 1969 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 611 ) AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 2150/80 OF 18 JULY 1980 ( OFFICIAL JOURNAL , L 210 , P . 5 ), HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

2 IT IS TO BE NOTED THAT THE FIRST STEPS IN THE DIRECTION OF A COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES , BASED ON THE DEFINITION OF COMMON QUALITY STANDARDS , WERE TAKEN BY REGULATION NO 23 OF THE COUNCIL OF 4 APRIL 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-62 , P . 97 ). ARTICLE 16 OF THAT REGULATION REQUIRES MEMBER STATES TO TAKE STEPS TO ADOPT PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION SO THAT THE PROVISIONS CONCERNING THE COMMON ORGANIZATION OF THE MARKET MAY BE APPLIED FROM 1 JULY 1982 .
3 THOSE PROVISIONS , WHICH WERE SUBSEQUENTLY REPEATEDLY AMENDED AND SUPPLEMENTED , WERE CODIFIED IN REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL , ARTICLE 8 OF WHICH PROVIDES FOR THE INSTITUTION OF CHECKS ON QUALITY STANDARDS AT ALL MARKETING STAGES AND DURING TRANSPORT , BY THE AUTHORITIES APPOINTED BY EACH MEMBER STATE . THE SAME PROVISION STIPULATES THAT MEMBER STATES SHALL COMMUNICATE TO THE OTHER MEMBER STATES AND THE COMMISSION DETAILS OF THE AUTHORITIES WHICH THEY HAVE APPOINTED TO BE RESPONSIBLE FOR CHECKING . UNDER THE TERMS OF ARTICLE 38 OF THE SAME REGULATION , MEMBER STATES AND THE COMMISSION ARE TO COMMUNICATE TO EACH OTHER THE INFORMATION NECESSARY FOR APPLYING THE REGULATION . IN ADDITION , MEMBER STATES ARE REQUIRED TO NOTIFY THE COMMISSION OF PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION PURSUANT TO THE REGULATION NOT LATER THAN ONE MONTH AFTER THEIR ADOPTION .

4 BY REGULATION NO 2638/69 THE COMMISSION ADOPTED , ON THE BASIS OF THE RULES IN FORCE AT THAT TIME , VARIOUS PROVISIONS RELATING TO THE QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY . ARTICLE 1 OF THAT REGULATION PROVIDES THAT FORWARDING AREAS ARE TO BE ESTABLISHED FOR THE ORGANIZATION OF INSPECTIONS . ANNEX I THERETO DEFINES FIVE SEPARATE FORWARDING AREAS FOR ITALY .

5 ARTICLE 5 OF THE SAME REGULATION REQUIRED MEMBER STATES TO RECORD IRREGULARITIES IN CONSIGNMENTS OF FRUIT AND VEGETABLES ORIGINATING IN OTHER MEMBER STATES AND TO KEEP THE COMMISSION INFORMED OF CASES OF NON-COMPLIANCE WHICH HAD BEEN ESTABLISHED . THAT REQUIREMENT OF NOTIFICATION WAS SUBSEQUENTLY EXTENDED AND DEFINED IN COMMISSION REGULATION ( EEC ) NO 2150/80 , WHICH CAME INTO FORCE ON 1 JANUARY 1981 . THE NEW VERSION OF ARTICLE 5 REQUIRES MEMBER STATES TO FURNISH THE COMMISSION WITH A MONTHLY SUMMARY OF THE INSPECTIONS CARRIED OUT WITHIN THEIR TERRITORIES AND IN ADDITION TO PROVIDE INFORMATION CONCERNING CASES OF FAILURE TO COMPLY IN RESPECT OF CONSIGNMENTS OF FRUIT AND VEGETABLES FROM OTHER MEMBER STATES .

6 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT , ON 15 JANUARY 1980 , THE COMMISSION SENT TO THE ITALIAN MINISTER FOR AGRICULTURE A LETTER DRAWING HIS ATTENTION TO THE UNSATISFACTORY NATURE OF THE QUALITY CONTROLS CARRIED OUT BY THE NATIONAL AUTHORITIES , IN PARTICULAR AS REGARDS FRUIT AND VEGETABLES MARKETED IN THE PRODUCER COUNTRIES . WHILST THE COMMISSION DECLARED THAT IT WAS AWARE OF THE DIFFICULTIES CREATED BY THE APPLICATION OF THE EXISTING RULES , IT EMPHASIZED IN THAT LETTER THAT THE PRESENCE ON THE MARKET OF PRODUCTS OF UNSATISFACTORY QUALITY HAD UNFAVOURABLE REPERCUSSIONS ON THE FUNDAMENTAL STABILITY OF THAT MARKET AND ON THE LEVEL OF PRICES WITH THE CONCOMITANT RISK OF A GREATER NUMBER OF WITHDRAWALS WHICH , AS THE COURT OF AUDITORS HAS NOTED IN ITS REPORT , ENTAILED AN UNJUSTIFIED INCREASE IN THE COSTS CHARGED TO THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND . IN CONSEQUENCE , THE COMMISSION REQUESTED THE ITALIAN GOVERNMENT TO NOTIFY IT NOT LATER THAN 31 JANUARY 1980 OF THE MEASURES ADOPTED TO ENSURE A STRICT CONTROL OF THE QUALITY OF FRUIT AND VEGETABLES MARKETED OR WITHDRAWN FROM THE MARKET AND THE RESULTS OF INSPECTIONS CARRIED OUT BY THE NATIONAL AUTHORITIES SINCE THE BEGINNING OF THAT YEAR .

7 A TELEX MESSAGE OF 28 MAY 1980 , IN WHICH THAT LETTER WAS REFERRED TO AND A REMINDER OF 28 JULY 1980 MET WITH NO RESPONSE ON THE PART OF THE ITALIAN GOVERNMENT .

8 FOLLOWING THE ENTRY INTO FORCE OF REGULATION NO 2150/80 WHICH DEFINED THE OBLIGATIONS OF MEMBER STATES AS REGARDS THE INFORMATION TO BE PROVIDED ON INSPECTIONS CARRIED OUT WITHIN THEIR TERRITORY , ON 20 JULY 1981 THE COMMISSION SENT A FURTHER LETTER TO THE ITALIAN GOVERNMENT , REFERRING TO THE PREVIOUS CORRESPONDENCE AND NOTING THAT THE ITALIAN AUTHORITIES HAD NOT PROVIDED ANY OF THE INFORMATION REQUIRED UNDER ARTICLE 5 OF REGULATION NO 2638/69 AS AMENDED BY REGULATION NO 2150/80 . THE COMMISSION AGAIN STATED THAT THERE WERE NO SATISFACTORY QUALITY CONTROLS OF FRUIT AND VEGETABLES MARKETED WITHIN ITALIAN TERRITORY AND EXPRESSED THE VIEW THAT ITALY HAD ALSO FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 8 ( 1 ) OF REGULATION NO 1035/72 . ACCORDINGLY , IT REQUESTED THE ITALIAN GOVERNMENT TO SUBMIT ITS OBSERVATIONS , IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 169 OF THE TREATY .

9 THAT LETTER , IN ITS TURN , WAS IGNORED . AS A RESULT THE COMMISSION DREW UP ON 24 MARCH 1982 , IN ACCORDANCE WITH ARTICLE 169 , ITS REASONED OPINION WHICH WAS COMMUNICATED TO THE ITALIAN GOVERNMENT ON 31 MARCH 1982 . THE ITALIAN GOVERNMENT DID NOT COMPLY WITH THE OPINION AND THIS ACTION WAS ACCORDINGLY INTRODUCED ON 17 DECEMBER 1982 .
10 THE ITALIAN GOVERNMENT EMPHASIZES IN THE FIRST PLACE THAT IT ADOPTED SOME CONSIDERABLE TIME AGO ALL THE MEASURES NECESSARY FOR THE INTRODUCTION OF A SYSTEM OF QUALITY CONTROL FOR PRODUCTS INTENDED FOR EXPORT . HOWEVER , IT DOES NOT CONTEST THE FACT THAT IT HAS FAILED TO ADOPT APPROPRIATE PROVISIONS FOR THE ORGANIZATION OF THE INSPECTIONS PROVIDED FOR BY THE COMMUNITY PROVISIONS ON FRUIT AND VEGETABLES PRODUCED AND MARKETED WITHIN THE NATIONAL TERRITORY . IT MAINTAINS THAT THE IMPLEMENTATION OF THE ORGANIZATIONAL MEASURES INVOLVED RAISES CONSIDERABLE PROBLEMS OF ADMINISTRATION , COORDINATION AND FINANCING WHICH ARE RENDERED MORE DIFFICULT BY THE FACT THAT THE ITALIAN TERRITORY HAS BEEN DIVIDED INTO FIVE FORWARDING AREAS . THAT FACTOR INCREASES SUBSTANTIALLY THE ADMINISTRATIVE COSTS OF SETTING UP AN EFFECTIVE SYSTEM OF INSPECTION . IN ITS VIEW THE NUMBER OF AREAS MUST BE REDUCED SO THAT APPROPRIATE CONTROLS MAY BE ORGANIZED IN ITALY WITHOUT CREATING EXCESSIVE FINANCIAL BURDENS .

11 WHILST APPRECIATING THE GENUINE NATURE OF THE DIFFICULTIES WITH WHICH THE ITALIAN GOVERNMENT IS FACED THE COURT CANNOT BUT NOTE THAT THE FIRST STEPS IN ESTABLISHING AN ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES WERE TAKEN IN 1962 AND THAT THE ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES WERE TAKEN IN 1962 AND THAT THE ORGANIZATION OF THE MARKET WAS GIVEN ITS PRESENT FORM IN 1972 . THE FORWARDING AREAS WERE DEFINED BY THE COMMISSION IN 1969 IN ACCORDANCE WITH AN UNANIMOUS OPINION OF THE MANAGEMENT COMMITTEE .

12 ALTHOUGH THE SETTING UP OF AN EFFECTIVE SYSTEM OF INSPECTION MAY HAVE MET WITH GENUINE DIFFICULTIES IN THE CIRCUMSTANCES SET OUT ABOVE , THE PERIOD WHICH HAS ELAPSED SINCE THE IMPLEMENTATION OF THE RULES DEFINING THE COMMON ORGANIZATION OF THE MARKET OUGHT TO HAVE ENABLED THE ITALIAN AUTHORITIES TO TAKE LONG AGO THE NECESSARY STEPS TO RESOLVE THE EXISTING DIFFICULTIES , TO ENSURE THE INTRODUCTION OF EFFECTIVE MACHINERY FOR INSPECTIONS AND TO COMPLY WITH THE REQUIREMENTS AS TO NOTIFICATION LAID DOWN IN REGULATION NO 2150/80 .
13 IN THOSE CIRCUMSTANCES , THE COURT CAN ONLY DECLARE THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS IN THE TERMS SET OUT IN THE COMMISSION ' S CONCLUSIONS .

COSTS
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . DECLARES THAT THE ITALIAN REPUBLIC , BY NOT AFFECTING QUALITY CONTROLS OF FRUIT AND VEGETABLES MARKETED WITHIN ITALIAN TERRITORY AS REQUIRED UNDER ARTICLE 8 ( 1 ) OF REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 427 ) AND BY NOT PROVIDING MONTHLY STATEMENTS RELATING TO THE INSPECTIONS CARRIED OUT DURING THE PREVIOUS MONTH , AS REQUIRED BY ARTICLE 5 ( 1 ) OF REGULATION ( EEC ) NO 2638/69 OF THE COMMISSION OF 23 DECEMBER 1969 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 611 ) AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 2150/80 OF 18 JULY 1980 ( OFFICIAL JOURNAL , L 210 , P . 5 ), HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ;

2.ORDERS THE ITALIAN REPUBLIC TO PAY THE COSTS .